Jus Politicum, revue de droit politique.

Jasdeep Randhawa

Understanding Judicialization Of Mega-Politics : The Basic Structure Doctrine And Minimum Core

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Thèmes : Justice constitutionnelle - Contrôle de constitutionnalité - Interprétation constitutionnelle - Juge/Cour constitutionnel(le) - Activisme judiciaire - Afrique du Sud - Inde

Français

Les théories sur l’activisme juridictionnel demeurent incomplètes. Il en va ainsi des explications fournies par Ran Hirschl sur la judiciarisation des questions politiquement sensibles (mega-politics). En effet, ces théories ne résistent pas à un examen rigoureux des doctrines jurisprudentielles mises en œuvre par les juridictions constitutionnelles, comme par exemple les cours constitutionnelles indiennes et sud-africaines. Au contraire, cet article essaie de montrer en quoi les doctrines jurisprudentielles, formulées par les juges constitutionnels en vu de justifier et d’affirmer leurs contrôles, peuvent être interprétées de manière à être conformes aux climats politiques et sociaux considérés. Cette contribution développe ainsi une approche comparative qui lui permet de montrer que la Cour constitutionnelle indienne exerce, contrairement à la perception qu’il est possible d’en avoir, une certaine retenue judiciaire (Judicial restraint). Pourtant, une telle retenue ne signifie pas qu’elle soit déférente à l’égard du pouvoir exécutif – par peur d’un conflit institutionnel –, et ce, contrairement aux analyses de Ran Hirschl.


English

Understanding Judicialization Of Mega-Politics : The Basic Structure Doctrine And Minimum Core

The present positive theories that explain the rise of activist courts are incomplete. In particular, the assertions made by Ran Hirschl regarding the judicialization of mega-politics do not stand scrutiny when seen from the experience of the Basic Doctrine in India and Minimum Core in South Africa. Instead, this article by tracing the formulation of the basic doctrine and the subsequent utilization of the doctrine by the court attempts to show that a doctrine, which is formulated by the court to assert its power of judicial review, will be interpreted in a variety of ways to suit both the political and social climate. Doing a comparative perspective with South Africa, the article further argues that even though the court may look to be an activist court, it actually exercises restraint, which has nothing to do with deference to the executive branch for fear of backlash against it, contrary to what has been asserted by Hirschl.


Deutsch

Über die Juridifizierung der Mega-Politics : die Basic Structure Doctrine und die Minimum Core Doktrin

Die gegenwärtigen Theorien über den richterlichen ,,Aktivismus" bleiben unvollständig, so z.B. die Thesen von Ran Hirschl über die Juridifizierung der politischen brisanten Fragen (Mega-Politics). Anhand der Beispiele der sog. Basic Structure Doctrine des Supreme Court von Indien bzw. der Minimum Core Doktrin des Verfassungsgerichts von Südafrika, wird gezeigt, dass diese zu ihrer eigenen Rechtfertigung ausgedachten richterlichen Lehren im Sinne der politischen und sozialen Bedingungen des jeweiligen Landes interpretiert werden können. Eine vergleichende Perspektive lässt darauf schliessen, dass das oberste Gericht von Indien, entgegen den verbreiteten Ansichten, eher eine zurückhaltende Position einnimmt.


    But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. ..., the Court cannot fold its hands in despair and declare “Judicial hands off.” This Court is the ultimate interpreter of the Constitution. [1]

INTRODUCTION

Judicialization of politics in India began way back in 1951 when the First Prime Minister Pandit Jawaharlal Nehru introduced the First Amendment in the Parliament to insulate the land reform legislations from the purview of judicial scrutiny by the creation of the Ninth Schedule that immunized the land legislations from the purview of judicial review. With new beginnings in the form of a written Constitution, so conferred by “We the People”, in independent India, surely, the founding fathers could not have foreseen a head-on collision between the judiciary and legislature happening the very next year. Beginning therewith, introduction of constitutional amendments in the parliament, and their subsequent challenge in the Supreme Court of India became a common phenomenon. In 1973, with the formulation of the doctrine of Basic Structure by the Supreme Court of India as a threshold for determining the unamendable features of the text, the battle line was clearly drawn.

Thereafter, every “political thicket” question has come to be determined by the court on the basis of this doctrine. The Supreme Court has been accused of “judicial overreach” by the executive and the legislature, and of violating the sacrosanct principle of separation of powers by the other two branches of the state. Judicial review of presidential promulgation of declaration of emergency, determining the existence of the strength of a political party to make a claim for forming the government, setting sexual harassment guidelines in the workplace in the absence of a legislation and determination of the existence of a parliamentary privilege are some of the types of political questions being adjudicated by the Supreme Court of India today.

However, this is not a new pattern. For instance, in the case of South Africa, in the constitutional Certification judgement [2], the Constitutional Court struck down certain provisions of the post 1996 apartheid constitutional text as being violative of the very equality objective that the Bill sought to promote. In the case of India, the Supreme Court in Kesavananda Bharthi explicitly disapproved the amendment of the Constitution by the executive on the ground that the state had no approval from the people to destroy their “collective identity”. [3] Judgements involving such political questions have come to be termed as “Judicialization of Mega-Politics”. Positive theorists explain judicialization as the transfer of power from representative institutions to the judiciaries. [4] For instance, Ran Hirschl defines the phrase to mean the adjudication of “matters of outright and utmost political significance that often define and divide whole polities, such as determination of foundational collective-identity questions, nation-building processes, corroboration of regime change and determination of electoral outcomes. [5] Israel, South Africa, Canada, Britain, Latin America, New Zealand, Australia, Egypt are counted among those countries that have experienced the expansion of such judicial power.

While doing so, the courts have come up with a general doctrine to adjudicate on such political questions. The doctrines have been framed in a manner, which is pretty vague, thus paving the way for considerable controversy regarding the correct interpretation and application. For instance, in Kesavanada Bharati, the doctrine of Basic Structure was formulated. The court did not lay down decisively what the basic structure was, thereby leaving it to decide at its discretion on a case by case basis. Following this decision, the Supreme Court has utilized the doctrine in at least 345 of its decisions, with yet no clear delineation of the doctrine. On the other hand, in the case of South Africa, the definition of ‘minimum core’ has been the most evasive with the court rejecting the United Nations definition to dictate its adjudication involving socio-economic policies. Simultaneously, the court has come up with its own explanation of how it would adjudicate upon such issues on the basis of the ‘reasonableness’ doctrine, which is again quite vague. The reasonableness doctrine has then been utilized for adjudicating upon water, health and housing policies. This space is what I argue has been the most controversial in terms of understanding the relation between the executive and the judiciary. For Ran Hirschl, support from the political sphere is a necessary pre-condition for the judicialization of pure politics. Thus, according to him social and institutional factors alone without “strategic political deference to the judiciary alongside politically astute judicial behavior”, does not lead to judicialization of mega-politics. Therefore, “courts hand down decisions that favor the powerless primarily when doing so is consistent with elite values and interests.” [6] In the absence of such political support, the result is a significant political backlash like legislative overrides, interference with the judicial appointments, limiting the scope of judicial review, etc.

I do not agree with Hirschl’s explanation because it does not give a complete account. This paper instead argues that in the context of the Indian scenario, the doctrine of basic structure was the result of judicialization of mega-politics in India. The paper would explain the background against which the court formulated the doctrine. I would argue that judicialization during this period primarily occurred due to the court standing on behalf of the people for resisting any constitutional change, and thus, acting as the opposition party against the passage of amendments in the parliament. The paper would then trace the post-Kesavananda phase to understand the type of cases to which the doctrine was being applied to and the interpretation accorded to the meaning of Basic Structure. It would be argued that the interpretation in IR Coelho [7] and the subsequent cases show a paradigmatic shift in the utility of the basic structure doctrine. If after Kesavananda the doctrine was being applied in a manner that gave the Supreme Court broad discretion to decide a case which had nothing to do with the application of basic structure doctrine, it will be argued that now the Court has set up a high threshold which needs to be passed before striking a legislation as invalid on the basis of violation of the doctrine. The attribution of the shift will be linked to public mistrust of the executive and also the controversy relating to judicial impropriety. It will be argued that even though the Supreme Court continues to place itself strongly in matters of political controversies and adjudicating on government policies, it does so more cautiously. And this cautious behavior cannot be attributed to the reasons of backlash by political elites that Hirschl has offered. Instead, I argue that it is because the judiciary is sensitive of its public image as also because it precisely understands the limits of constitutional adjudication of public policies and political questions. However, even so given, the judiciary due to lessons learnt post-emergency has always been assertive of its independence, even if that has meant applying the doctrine of basic structure. Building upon this analysis, it would be argued that an explanation more inclusive than being based on political deference and backlash is required to understand judicialization process. The South African decisions on socio-economic rights will also be considered to show that what seems to be a judicially active branch is actually exercising restraint, which cannot be attributed to the explanation advanced by Hirschl.

Notes

[1] Justice Bhagwati, Former Chief Justice of India in State of Rajasthan and Ors. v. Union of India and Ors., AIR 1977 SC 1361.

[2] Certification of the Constitution of The Republic of South Africa, [1996] CCT 23/96 (S. Afr.)

[3] AIR 1973 SC 1461

[4] See generally, Torbjorn Vallinder, “The Judicialization of Politics. A Worldwide Phenomenon : Introduction,” International Political Science Review, Vol. 15, No. 2, Apr. 1994, at 91 ; and Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization, New York : Oxford University Press, 2002.

[5] Ran Hirschl, “The Judicialization of Mega-Politics and the Rise of Political Courts,” Annu. Rev. Polit. Sci. , Vol. 11, 2008

[6] Supra note 5.

[7] AIR2007SC861

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